APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 93-cv-03346). This Opinion Substituted on Grant of Rehearing for Vacated Opinion of March 27,.
Before: Stapleton, Alito and Lewis, Circuit Judges.
In this case, we must determine whether the Pennsylvania Turnpike Commission ("Commission") is an "arm" or "alter ego" of the Commonwealth of Pennsylvania and thus entitled to Eleventh Amendment immunity from suit in federal court. Because we conclude that the Commission is not an arm or alter ego of Pennsylvania we will affirm the district court's finding that the Commission does not enjoy Eleventh Amendment sovereign immunity.
The appellee, Charles Christy ("Christy"), has been an employee of the Commission since 1976.*fn1 In November of 1992, Christy made application for the position of Paint Crew Foreman. He was interviewed for this position in early 1993 by the appellants John Boschi, Vincent Greco and John Stewart.*fn2 Christy was then chosen as one of three final candidates for the Paint Crew Foreman position. The names of the three final candidates were passed to the Commission's personnel committee for final review. The personnel committee then recommended that the position be awarded to one Sean Pilecki, a Commission employee during the preceding four and a half years. The Commission adopted the personnel committee's recommendation and hired Mr. Pilecki. Christy subsequently applied and was turned down for the position of Eastern Division Equipment Supervisor.
Christy then sued the Commission and its individual commissioners and personnel committee members pursuant to 42 U.S.C. §§ 1983 and 1985, claiming that he was not promoted due to political bias against him. In response to Christy's claims of political bias, the Commission and individual defendants Brady, Greco and Stewart filed a joint motion for summary judgment, while the defendant Boschi filed a separate summary judgment motion. The district court denied the defendants' motions, ruling as a matter of law that the Commission was not entitled to Eleventh Amendment immunity, and rejecting the individual defendants' claims of qualified immunity. These appeals followed.
The district court had jurisdiction in this case pursuant to 28 U.S.C. §§ 1343(a)(3) and 1367(a).*fn3 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 over the district court's denial of the defendants' motions for summary judgment on Eleventh Amendment and qualified immunity grounds. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., ___ U.S. ___, ___, 113 S. Ct. 684, 687-89 (1993) (Eleventh Amendment immunity); footnote 4, infra (qualified immunity). We exercise plenary review of the district court's denial of the defendants' motions for summary judgment. Rappa v. New Castle County, 18 F.3d 1043, 1050 (3d Cir. 1994).*fn4
We must determine whether the district court correctly concluded that the Commission is not an "arm" of Pennsylvania and therefore not entitled to sovereign immunity under the Eleventh Amendment.*fn5 The question whether the Commission is an "arm" of the State is one of federal law. Blake v. Kline, 612 F.2d 718, 722 (3d Cir. 1979). However, before undertaking our Eleventh Amendment analysis, we must decide a question of apparent first impression in this Circuit: who bears the burden of production and persuasion with respect to factual questions when a putative state entity claims immunity under the Eleventh Amendment? We conclude that the party asserting Eleventh Amendment immunity (and standing to benefit from its acceptance) bears the burden of proving its applicability. In so concluding, we adopt the reasoning set forth by the Court of Appeals for the Ninth Circuit in ITSI TV Productions v. Agricultural Associations, 3 F.3d 1289 (9th Cir. 1993). Because Eleventh Amendment immunity can be expressly waived by a party, or forfeited through non-assertion, it does not implicate federal subject matter jurisdiction in the ordinary sense. Id. at 1291. We agree with the Ninth Circuit that "whatever its jurisdictional attributes, [Eleventh Amendment immunity] should be treated as an affirmative defense[,]" and "like any other such defense, that which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance." Id. We also agree with the Ninth Circuit that considerations of fairness support this Conclusion. As the court noted in ITSI TV Productions :
In general, a claim of Eleventh Amendment immunity will occasion serious dispute only where a relatively complex institutional arrangement makes it unclear whether a given entity ought to be treated as an arm of the state. In such cases, the "true facts" as to the particulars of this arrangement will presumably "lie particularly within the knowledge of" the party claiming immunity.
3 F.3d at 1292 (citations omitted).
Having concluded that the party asserting Eleventh Amendment immunity bears the burden of proving entitlement to it, we turn now to the merits of the immunity question. We have on numerous occasions set forth the criteria to be considered in determining whether an entity is an "alter ego" or "arm" of a state for purposes of the Eleventh Amendment. See e.g., Peters v. Delaware River Port Authority, 16 F.3d 1346, 1350 (3d Cir. 1994); Bolden v. Southeastern Pennsylvania Transp. Auth., 953 F.2d 807, 816-818 (3d Cir. 1991) (in banc); Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989) (in banc). Our oft-reiterated test entails three distinct inquiries: (1) whether, in the event the plaintiff prevails, the payment of the judgment would come from the state (this includes three considerations: whether the payment will come from the state's treasury, whether the agency has sufficient funds to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency's debts); (2) the status of the agency under state law (this includes four considerations: how state law treats the agency generally, whether the agency is separately incorporated, whether the agency can sue and be sued in its ...